Skirmishes continue over landfill in Guadalupe County

By Zeke MacCormack :
June 22, 2013
: Updated: June 22, 2013 10:41pm

Dumping is underway in the portion of the Mesquite Creek Landfill in Guadalupe County despite a lawsuit challenging the TCEQ's approval in 2008 of the expansion of the landfill that was strictly in Comal County then.

Photo By Zeke Maccormack/San Antonio Express-News

A garbage truck passes Mesquite Creek Landfill located on the border of Comal and Guadalupe Counties just north of New Braunfels and east of Interstate 35.

Photo By Zeke Maccormack/San Antonio Express-News

A Waste Management truck enters the Mesquite Creek Landfill which the company operates off Kohlenberg Road north of New Braunfels.

The trash trucks just keep rolling into the Mesquite Creek Landfill to deposit loads in Guadalupe County despite a legal challenge to the Texas Commission on Environmental Quality's 2008 approval of the dump's expansion there.

Opponents, in a lawsuit against the agency, claim it ignored its own regulations in permitting Waste Management to enlarge its former 79-acre dumping zone in Comal County to 164 acres, crossing the county line just north of New Braunfels.

Their ire over the TCEQ decision, upheld by a state district judge in Travis County in a 2009 ruling now being appealed, was compounded by Guadalupe County Commissioners' earlier agreement to drop out of the permitting process in exchange for concessions pledged by Waste Management.

“We felt betrayed, and that they hurt our chances of getting the permit denied,” said Nancy Schwarzlose of Concerned Citizens and Landowners, which is aligned with a landfill watchdog group, TJFA L.P., as plaintiffs in the suit now before the Third Court of Appeals in Austin.

County Commissioner Judy Cope said commissioners bargained with Waste Management for the benefit of constituents, “because we knew that no matter what we did, it would not effect the decision of TCEQ to go ahead and approve the permit.”

Other Guadalupe County elected officials wonder how good a deal resulted.

The firm agreed to limit landfill operating hours, remediate any drainage problems arising from the expansion, pay for regular testing of three nearby private wells, cover the working face of the dump daily and give the county reduced rates on solid waste disposal there.

Other provisions call for the firm to make a one-time $50,000 payment for upkeep of nearby county roads, plus quarterly payments to the county equal to 4 percent of the landfill's gross revenue.

State records show 321,797 tons of trash were deposited in 2012 at the site. Clerks say a $70 minimum fee covers up to a ton with $49.50 charged for every additional ton in the same load.

The road money was banked long ago, but the quarterly payments take effect “only when WMT receives written notice of TCEQ's final and nonappealable approval of the proposed permit,” the settlement states.

Waste Management spokeswoman Lisa Doughty said it isn't obligated to begin paying yet because of the lawsuit.

However, TCEQ spokeswoman Andrea Morrow said: “Although there is litigation concerning the issuance of the permit ongoing, the permit is final and effective.”

Doughty said Waste Management hasn't been asked to pay for any testing of private wells, as provided in the agreement, nor has it received any complaints about drainage issues from neighbors surrounding its 216-acre site.

In its pleadings as an intervener in the suit, Waste Management seeks court approval of the TCEQ's issuance of the permit, saying it complied with all applicable statutory and regulatory requirements.

Guadalupe County Judge Larry Jones, in office since November, has publicly criticized the settlement.

“I wouldn't have negotiated for a landfill to be in any part of my county, at any time,” he said Thursday. “I know that we have to have landfills to put our trash somewhere, but I don't want any in my backyard or my constituents' backyards.”

He faulted the provision by which either party can cancel the settlement within 60 days, noting Waste Management could avoid paying hundreds of thousands of dollars annually while still dumping there another 25 years.

Defending the pact, Cope said the county lacks regulatory authority over Waste Management. Doing nothing, or opposing the permit, would have yielded nothing for residents, while approving the contract offered some protection, she said, adding: “We told them what we wanted in the agreement and they drafted it.”

Assistant County Attorney Bob Etlinger, who advised commissioners, said the county had no leverage to negotiate and “it was the belief of commissioners court that this was the best deal we could get.”

Commissioner Kyle Kutscher, whose precinct inherited the landfill from Cope through redistricting in 2010, also sees shortcomings in the pact.

“They're dumping waste in Guadalupe County. We should be getting a fee off that,” he said.

Although Doughty said current dumping is on the Guadalupe County section, the firm still is paying commissions to Comal County, from which it acquired the landfill in 1988, and to New Braunfels, under previously negotiated deals.

Comal County banked $195,062 in commissions over the first six months of 2013, County Auditor David Renken said, and logged $395,593 last year from Waste Management.

New Braunfels took in $125,000 in fiscal 2011-12, officials said, down from $579,201 in fiscal 2007-08.